Cascao 2007 Chroniques Egyptiennes

New Nile Treaty: A Threat to EgyptianHegemony on the Nile?

ANA ELISA CASCÃO1

This article aims to analyze and understand the hydropolitical relations betweenEgypt and the neighboring Nile riparian states during the year 2007. Particularattention is given to a potential new Nile agreement, for which negotiations involvingall ten Nile riparian states were concluded in June 2007. Through the assessmentof the Egyptian and regional media coverage of the issue, as well as interviews withmain actors in the negotiations, the article attempts to cast light on the negotiationsfor the Nile “Cooperative Framework Agreement.” It includes analysis of the detailsof the negotiations, the contents of the draft agreement and its possible consequenceson Egypt’s access to the Nile water resources in the future.

Ana Elisa Cascão is a PhD Candidate in the Department of Geography at King’s College –University of London (UK), and has been conducting research about water resources management inthe Nile River Basin. She is also a member of the LSE/KCL London Water Research Group.Contact: [[email protected]]

Cet article analyse les relations hydropolitiques entre l’Égypte et lesÉtats riverains du bassin du Nil au cours de l’année 2007. Une attentionparticulière est portée au nouvel accord de partage des eaux du Nil dontles négociations entre les dix pays du bassin ont été conclues en juin2007. À partir de l’étude de la couverture médiatique des négociationsen Égypte et dans la région, et d’entretiens avec les principaux acteurs,cette contribution examine les enjeux du « nouvel accord cadre decoopération » et expose le détail des négociations, le contenu de l’accordpréalable et ses conséquences potentielles sur l’accès de l’Égypte auxeaux du Nil.

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HIS ARTICLE aims at understanding the hydropoliticalrelations between Egypt and the Nile riparian countries duringthe year 2007. In that year, the draft of a new Nile treaty wasconcluded involving all the riparian states. What has been

negotiated, which are the contentsof this new agreement and thepotential consequences for Egypt’saccess to water resources, will bediscussed further. The draft treatyis a classified and top-secretdocument, where access is restrictedto the negotiators and top-levelpoliticians. Hereby, the analysis willbe based on the informationavailable in the media and ininterviews conducted in Egypt,Sudan, and Ethiopia.

The initial goal of the article wasto analyze Egyptian media coverageto understand what is and is notdebated in the public domain in

Egypt concerning negotiations over the Nile waters. Insufficient coverageof this issue by the Egyptian media, in particular from independentnewspapers, made this evaluation impossible. Instead, this article analysesthe developments in the Basin negotiations based on a collection ofreports from Egyptian as well as international newspapers, magazines,online news agencies, reports, and interviews with official and non-official stakeholders. The article follows a chronological order of theevents and available public information, which puts in evidence thethriller-style of the negotiations.

Egypt’s Positionality in the Nile River Basin

Egypt is a desert country bisected by the longest river in the world– the Nile River – which is its main source of water. Egypt has historicallydeveloped the Nile waters for several economic purposes, from agricultureto hydropower production, industry, services, and tourism. Despite thefact that Egypt shares the Nile River with other nine African countries,

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it is indisputably the main user of its waters. The management andallocation of Nile water resources is embedded in a complexhydropolitical chessboard.

The Nile is a transboundary river shared by ten countries – Egypt,Sudan, Ethiopia, Eritrea, Uganda, Kenya, Tanzania, Rwanda, Burundi,and the Democratic Republic of Congo. In the past, the Nile Basin hasexperienced several diplomatic conflicts due to these shared waters.Alarmist analysts predicted “water wars” between Egypt and the upstreamcountries.2 However, since 1999 the ten Nile countries are involved ina cooperative process, the Nile Basin Initiative (NBI), whose goal is toachieve common management and shared allocation of the Nile waters.Under the auspices of the NBI, long and tough negotiations defininga Cooperative Framework Agreement (CFA) have taken place in thelast decade.3 In June 2007, the riparians have reached a final draftframework that can eventually turn into the first Nile Treaty includingall riparians. The agreement includes provisions on equitable use ofwater resources and introduces a new and ambiguous hydropoliticalconcept – “water security.” The CFA postulates that “all states,” notjust the downstream states, have the right to achieve and sustain “watersecurity.” Does this agreement downplay the “acquired rights” of thedownstream riparian and put an end to the Egyptian hegemony in termsof Nile waters utilization? The media coverage of the negotiations andits outcomes put in evidence an initial optimism of the Egyptianauthorities followed by a strategic silence in the public domain, and bylate 2007 a strong criticism toward the Egyptian negotiators.

New Nile Treaty – A Threat to Egypt’s Hegemony on theNile?

On June 26, 2007, in Entebbe-Uganda, the nine Nile ripariancountries4 concluded a draft document of the Cooperative FrameworkAgreement – a comprehensive legal agreement on the Nile waterresources. The agreement has been negotiated under the auspices ofthe Nile Basin Initiative and lasted ten years (1997–2007), involving theMinistries of Water Resources of the Nile riparians, legal and technicalnational negotiators, and external advisors on international water law.According to the NBI official Web site “once ratified, this historicagreement will be the first Nile Treaty to include all riparian states of the

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Nile River Basin.”5 What will happen to the previous water agreements,such as the sacrosanct 1959 Agreement, which protects the currentEgyptian and Sudanese water allocations, is the crux of the matter andwill be analyzed in the following sections.

Egypt’s “Lion Share” of the Nile Waters

Egypt has a leadership position in the Nile Basin. Since pharaonictimes, Egypt had been using the Nile waters for the country’sdevelopment. A systematic use of the river, through the constructionof canals and expansion of irrigation, was initiated under Muhammad‘Alî rule at the beginning of the nineteenth century. Later, the completionof the Aswan High Dam in 1971 allowed for the massive extension ofEgypt’s irrigated land. The construction of this giant hydraulicinfrastructure was preceded by tough negotiations with Sudan during the1950s. In 1959, the two Nile downstream riparians signed a legalagreement called the Agreement for the Full Utilization of the NileWaters,6 which established the water allocations between the two countries– 55.5 billion cubic meters (bcm) for Egypt and 18.5 bcm for Sudan(75 per cent and 25 per cent respectively). The 1959 Agreement hasreplaced the previous bilateral agreement of 1929 signed between Egyptand the British administration on behalf of Sudan, which just includeda “partial utilization” of the Nile waters.7

On the other hand, the upstream riparians were not part of theseagreements and have continuously refused to acknowledge it, consideringit a “colonial agreement” based on inequity.8 Ethiopia and some of theEquatorial Nile countries have previously denounced the 1959Agreement. Besides upstream countries have no legal entitlement tospecific allocations of the Nile waters, and have not systematicallydeveloped the Nile water resources in their national territories. Therefore,the 1959 Agreement had been the recurring source of the diplomaticconflict between downstream and upstream riparians during the lastdecades. Upstream countries have repeatedly accused the downstreamcountries, in particular Egypt, of monopolizing the common waterresources. Moreover, upstream countries want to make use of the Nilewater resources for their own economic development, which wouldincrease competition for Nile resources.

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Cooperation on the Nile

After decades of diplomatic conflicts, threats of water wars, hotdebates concerning the existent and potential uses of Nile waters, anddisputes about the legitimacy of the existing legal agreements, the Nileriparians are allegedly cooperating on the management of commonwater resources. In 1999, the Nile Basin Initiative was created to includeall the ten Nile riparians and gathering a lot of political and financialsupport from the international community.9 The NBI comprises severalmedium- and long-term water projects to be implemented in all the Nilecountries including hydropower generation, irrigation, watershedmanagement, enhancement of water expertise, and capacity-building.10

However, the NBI is a provisional mechanism and not yet a river basinorganization. To become a permanent institution, the NBI will need tohave a legal status, thus a comprehensive legal framework must beadopted. Negotiations for a new legal framework have been running inparallel with the NBI process, managed by the Panel of Experts (PoE)composed by representatives of all Nile riparians and facilitated by theinternational community. These legal negotiations were a conditionalityof the Ethiopian government to participate in the Basin cooperation.11

All the other riparians, including Egypt, have accepted the conditionalityfor the sake of a comprehensive cooperative process. Nevertheless, forEgypt this potential new agreement was not intended to supersede the1959 Agreement but rather to acknowledge it, according to the Egyptianauthorities interviewed.

The negotiations for this new legal and institutional frameworkstarted in 1997, firstly under the designation of D3 Project and laterrenamed Cooperative Framework Agreement. These legal negotiationstake into account the customary international water law, such as the1997 UN Convention on the Non-Navigational Use of InternationalWatercourses.12 Indeed the Convention has been very influential in thetreaty negotiations and in the Draft Cooperative Framework Agreementitself, according to Stephen McCraffrey,13 the main international legaladvisor to the negotiations. Once signed, adopted by the nationalgovernments and ratified, the new treaty will enter into force and the NileBasin Commission will be created.14 Once the Commission will beestablished as a river basin organization, it “might contribute to increasedfunding for development projects and programmes”15 and projects onthe ground can move forward.

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New Agreement – Positions and Secrecy

Volumetric water allocations and legal agreements have always beenone of the most conflictive issues in the Nile Basin hydropolitics. The1959 Agreement represents the status quo situation that Egypt and Sudanwant to maintain, and the “acquired and historic rights” are considerednonnegotiable. The Egyptian position is based on the argument of“prior use” of the Nile waters.16 The Egyptian bargaining position inthese negotiations has been consistent with this argument. On the otherhand, upstream riparians regard the 1959 Agreement as unacceptable andconsider that cooperation is possible only if a new and comprehensivewater agreement supersedes the 1959 Agreement. Upstream ripariansclaim the development of the Nile water resources should foster nationalas well as regional economic development. In the last decades, antagonistpublic positions have been adopted by the respective governments,although they have been camouflaged by a diplomatic veil since thecreation of the NBI. Nevertheless, the status of the previous agreementis still the major obstacle to reaching a cooperative framework agreement.The negotiations and the draft agreement concluded in June 2007 reflectthese apparently incompatible positions.

An analysis of the media coverage puts in evidence the confidentialityand political sensitivity of the issue. The governments have beforehanddecided to safeguard the confidentiality of the negotiations. Publicinformation and debate about the negotiations are scarce, although theissue concerns all the citizens of the Basin. The analysis will be basedin the coverage of the negotiations by the Egyptian media and onlineinformation, but also external sources, such as newspapers from othercountries. Personal interviews with stakeholders from the Basin will alsobe used.17

Negotiations – Constant Delays

Negotiations for the new Cooperative Framework Agreement wereexpected to be concluded some years ago. Already in 2004, Al-AhramWeekly mentioned that “Nile Basin countries are trying hard to reachan agreement to establish a new legal framework governing the sharingof Nile waters.”18 But it was not until mid-2006 that the Nile negotiationsfor a new agreement gained momentum. An article in the Daily NewsEgypt19 highlighted the main issues at stake from the Egyptian perspective.

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According to Mahmûd Abû-Zîd, the Egyptian Minister of WaterResources and Irrigation, there was no conflict between Egypt andEthiopia and negotiations were moving forward. Ayman ‘Abd al-Wahhâb,from Al-Ahrâm Center for Political and Strategic Studies, reinforcedthe idea that currently Egypt and Ethiopia understand better the waterneeds of the neighbors and that an agreement was expected to be ratifiedin 2006. An idea highlighted in this article was that Egypt would continueto fight “strongly to maintain its quota of at least 55.5 billion cubicmeters per year” but nowadays considers that hydraulic projects inEthiopia will not affect the Egyptian water quota. Despite the goodrelations between the negotiators from the Nile riparians, the articlementions that negotiations were postponed to September, due to“expected hot weather […] and for no other reason,” according to theEgyptian Minister of Water Resources and Irrigation. In December, theEgyptian Ambassador to Uganda, Redâ Bîbars, reiterates “the sincerewill of all member-states to conclude the [Nile] agreement.”20

Nevertheless, the negotiations would be postponed again several timesduring the following months due to divergences between upstream anddownstream riparians, rather than weather conditions, as later analysiswill show.

Flattering and public declarations about cooperation on the Nile,and the NBI in particular, have since 1999 replaced the talks about waterconflicts in the Nile region. Egyptian media and official sites about theNile hydropolitics often praise good hydropolitical relations in the Basin,even considering that this “spirit of cooperation [is] a result of Egypt’sleadership.”21 Since the 1990s, hydro-diplomacy became a tool of theEgyptian leadership in the Basin. However, the legal agreements remainthe most conflictive issue. But what have been reported about the would-be Nile agreement? And what does this future agreement mean in termsof management and allocation of the Nile water resources among theNile neighbors?

2007 – High Expectations for a New Nile Treaty

A new phase of negotiation took place in several capitals of the Nilecountries during 2007. Negotiations in which only ministers and advisorshave participated have been closed-door sessions and little informationabout the terms of the agreement has been given to the public. However,

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generalized optimism characterized the declarations of the EgyptianMinistry of Water Resources and Irrigation, such as:

“Eastern Nile Basin countries including Egypt, Sudan, andEthiopia are about to agree on the legal and institutionalframework of the Nile Basin countries comprehensiveagreement (…) the three countries approved 99 percent ofthe agreement’s terms.”22

Several interviews with water experts in Egypt and Sudan duringthis period also indicated that an agreement was to be reached soon.Extraordinary ministerial talks in Addis Ababa, Ethiopia, during Januarywere considered by Minister Abû-Zîd as “fruitful and constructive [and]extremely important in coordinating the stances of Egypt, Ethiopia andSudan on the very few controversial points in the new draft agreement.”23

The Ministers of Water Resources of all Nile riparians (Nile-COM)were expected to meet in Rwanda, in February, for the celebrations ofthe Nile Day and to conclude the Cooperative Framework Agreement.

“Riparians have agreed on 99 percent of the articles” had been acommon answer from the regional water experts and national negotiators,but detailed information about the articles was never provided. In January,Minister Abû-Zîd disclosed that the discord was about the article on“water security” and that Ethiopia demanded explanation on the term.24

Indeed “water security” is not a concept of customary internationalwater law25 and the wording has surprised several water analysts in theregion.26 It is also unknown who has suggested the “innovative” andcontroversial terminology, which supposedly could accommodate thedivergent positions of upstream and downstream riparians and facilitatea compromise.

Lost Opportunities but Still Optimism

On February 22, celebrations of the first Nile Day, organized by theNBI and financed by the World Bank, took place in Kigali, Rwanda,and “have been the occasion to reiterate the vital importance of theriver for the 10 riparians.”27 The article highlights the festive environment,including dance shows, exhibitions, and debates involving Nile citizens.Nevertheless, “stakeholders beyond the national governments,” i.e., civilsociety, have not been included in interstate negotiations.28 Negotiationshave been restricted to governmental officials. Alan Nicol, a technical

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adviser to the Nile Basin Discourse,29 questions whether or not thenegotiations and documents should be open to the concerned Basinpopulations, concluding that “time is ripe for a more public debate onthe nature of the document being negotiated.”30

Despite the high expectations that a new Basin-wide would be signedin Kigali, no draft agreement was reached. Allegedly the riparians werenot able to reach a consensus. The results from the high-level negotiationson the new agreement, as well as the documentation under discussion,have again been kept secret. Nevertheless NBI experts, negotiators, andWorld Bank representatives have maintained optimism in the progressof the negotiations toward the achievement of an historical agreementin the short-term.31 During the months following February 2007, theEgyptian media focused on the continuation of the negotiations withthe same previous optimism.

In March, Minister Abû-Zîd demonstrated confidence “that a finalagreement could be expected within months [and] the majority of thetreaty’s articles have been endorsed by all sides, although a handful ofoutstanding issues have yet to be settled.”32 In May, Redâ Bîbars, theEgyptian ambassador to Uganda reinforced the optimism, stating “thelegal agreement is almost ready. We are 98 percent ready, but the2 percent is very important.”33 Newspapers in Cairo also reflected thegeneralized optimism of the Egyptian negotiators and try to calmdown old fears that upstream countries, in particular Ethiopia, canthreaten the Egyptian water quota. Al-Akhbâr mentioned “all thepending issues among the Nile countries will be settled [and] finalagreement is expected to be declared in Uganda in June”34 and quotedSudanese Minister of Irrigation and Water Resources Kamâl ‘AlîMuhammad saying “we are on our way to set a historical agreementthat will settle and regulate future relations between the Nile Basincountries.”35 It was also reported that “the Eastern Nile countriesachieve progress in examining their joint projects [such as] floodsforecasting, watershed management and hydropower trade.”36 Newpublic releases reaffirmed that these projects were under Egyptiancoordination and that there are no conflicts between Ethiopia andEgypt, confirming that a new agreement would be signed in June37

under a “unified vision for the Nile.”38

At the same time, top officials of the Egyptian Ministry of WaterResources denied suggestions that Nile water storage in the Ethiopianhighlands would be replace the Lake Nasser storage, or that these projects

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were part of the cooperation negotiations.39 In a common pressconference at the beginning of May, the Ethiopian Minister of WaterResources stated that “Ethiopia doesn’t aim to harm the Egyptian watershare” and Minister Abû-Zîd reaffirmed that Eastern Nile riparians are“settling many issues regarding the formalization of the newagreement.”40

Beyond Optimism – Ambiguity and Discord on “Water Security”

Despite all the enthusiasm of the Egyptian authorities reflected inthe national media, personal interviews with experts from the Basinrevealed that downstream and upstream countries were not able to agreeon the article on “water security” due to its ambiguity and lack of clearformulation in legal terms. From an Egyptian perspective, “water security”must include the protection of the historical agreements and the currentwater allocations, and regarded as defining Egyptian’s national watersecurity. The emphasis is on the legal principle of “no significant harm”as defined by the ILC Convention.41 Egyptian water experts interviewedunderlined that the 1959 Agreement is not to be superseded by the newFramework Agreement, and both agreements can co-exist. The argumentgoes that the 1959 Agreement is a bilateral agreement concerning waterallocations, and the CFA is a multilateral agreement concerning “win-win” solutions for the Nile water management and “sharing of benefits”resulting from joint projects.

On the other hand, upstream countries consider that the “watersecurity” provision is acceptable only if it endorses specifically the legalprinciple of “equitable and reasonable utilization”42 of water resources.Some analysts in the upstream countries consider that volumetricallocations need to be included in a second phase of negotiations, whichwould in the future replace the current allocations established by the1959 Agreement. These opposing positions confirm that the status ofthe previous agreements is still the major impediment for widercooperation, i.e., the “2 percent” of discord mentioned by the Egyptianambassador. It also confirms the previous apprehension that the draftagreement is still “marred by square brackets”43 and it persistently reflectsthe enduring divergence between riparians.

The public reactions of the upstream countries concerning the newagreement differ. For example, Maria Mutagambwa, Minister of Waterand Environment in Uganda, declared enthusiastically that “Egypt has

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no problem with the Commission. They are willing to share river Nilereasonably with all the partner states.”44 The Kenyan Minister for Waterand Irrigation, Mutua Katuku, also believed on “a new Nile River BasinCommission being adopted soon”45 although “countries were yet todecide on the definitions of some contentious terms, like the meaningof water security.”46 The Ethiopian press was more careful with thegeneralized optimism, considering that “there is a high reverberation inthe NBI that the New Nile Water Agreement will be signed soon, goodnews for Ethiopia [but] still now, Egypt vehemently sticks to its age-old policy and claims the natural and historical right over the Nile waters.Sadly, Sudan follows the same path.”47

Another article in the same newspaper alerted: “The Nile countriescannot decide on a Commission or Initiative [because of] contentiouspoints.”48 Tesfaye Wolde Mihiret, the NBI’ National Project Coordinatorfor Ethiopia, also highlighted that there are remaining problemsconcerning the definition of some of the articles, namely the one on watersecurity, because “for the Egyptians, it is a big deal, but for other countriesthe concept is not even clear…we can not have an article or proclamationwith any ambiguity.”49

The negotiations’ outcome seems far from the Ethiopian expectationsof an “equitable entitlement of the Nile Waters to all the riparian States”as expressed by Lemma,50 the former Director-General for Legal Affairsof the Ethiopian Ministry of Foreign Affairs. The Egyptian positionseems at odds with the Ethiopian position. Indeed, in the last two years,the Egyptian negotiators stated clearly that Egypt’s interest in thenegotiations was to maintain the historic rights and furthermore tosearch for “additional water.” In 2006, Abû-Zîd stated:

“The largest challenge has been to agree that the 55.5billion cubic meters is assured for Egypt. This took solong. We had to show that the potential for additional wateris great and that we can increase the yield of the Nilethrough this or that project, for everyone.”51

The search for additional Nile water has been always an importantfactor for the Egyptian participation in the NBI. As mentioned in theEgyptian National Water Resources Master Plan, published in 2005,“cooperation with the riparian countries of the Nile Basin is expectedto lead to additional inflow into Lake Nasser,” through theimplementation of upstream water conservation projects, mainly in

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Sudan and Ethiopia.52 Several reports from the Egyptian media during2007 have even alleged that “as agreed with the Nile river countries,Egypt will have an extra share of the Nile waters (…) in order to enableEgypt to expand its agricultural projects.”53 Egypt water authoritiesseem more interested to reap extra-benefits from the cooperation processrather than to make concessions to the other Nile riparians in terms ofallocation of water resources.

June 26, 2007 – A Final Draft Agreement Was Concluded

On the June 26, 2007, the Nile Council of Ministers (Nile-COM)concluded its negotiations on the Nile River Basin CooperativeFramework Agreement in Entebbe, Uganda. According to the NBI,“this achievement brings close to conclusion a 10-year process of analysisand negotiation to establish the institutional structure and legal basisfor cooperation in the management and development of the Nile River.”54

Unfortunately, the NBI has not provided any public information on theadopted document or details about the provisions of the draft framework.The public opinion has remained uninformed about how the pitfallswere overcome (if they have) and which were the final positions of theupstream and downstream riparians. At the same time the Egyptianmedia, which seemed so concerned with the issue during the previousmonths, have completely disregarded the fact that a final draft wasachieved in Uganda. What is the justification of this silence? Is thesilence justified by reasons of confidentiality and lack of informationmade public? Or the achieved draft agreement has not pleased theEgyptian authorities?

What happened in Entebbe? What has been the final formulationof the thorny provision on “water security”? Could Egypt and Sudanguarantee the protection of the 1959 Agreement? Or, on the other hand,does this new agreement represent a threat to the downstreams’hegemony in the Nile Basin? Does this new agreement really challengethe status quo in the Nile Basin? What will then happen to this draftagreement? Can we expect the creation of the Nile Basin Commissionsoon? Or will the NBI continue to be a provisional mechanism withouta legal framework? Officials and press have not provided clarificationof these questions during 2007. The new Nile agreement remains(partially) a secret of the gods! However, the silence was broken in mid-

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2007, when a Kenyan newspaper, The Standard, published an articleironically suggesting that Egypt and Sudan were against the equitablesharing of the Nile waters. This article was then republished by theSudan Tribune. According to the source,

“Egypt and Sudan have failed to agree with other countrieson equitable sharing of the Nile River basin waters. But theten States sharing the water resource have finally come upwith a new framework that allows equitable developmentand use of the basin.” 55

For the first time, the public was informed that the new version ofthe agreement would include 39 articles but that a disagreement on“water security” Article 14 was still remaining. Nevertheless, the articlehas not explained the contents of the articles included in the draftagreement. Finally, The Standard stated that “the cooperative frameworkis [now] to be presented to the governments for consideration andratification.”56 The information that the draft agreement is currently inthe hands of the heads of government for political consideration andpossibly adoption and ratification, was later confirmed by regional andinternational experts during personal interviews. However, no informationwas given about the time frame for a final decision. At the end of 2007,there was still no feedback from the heads of government about thewould-be adoption and ratification of draft agreement.

In August 2007, Uganda’s newspaper East African Business Week57

unraveled some specific details about the draft agreement signed inKampala in June. The newspaper acknowledged that the negotiationsof the CFA had been concluded but highlighted that “the agreementreached by the water ministers falls short of the most fundamentalprovision that would guarantee a safe passage out of poverty for theupstream countries,” i.e., the equitable sharing of the water. The newspaperreconfirmed that 39 articles had been deliberated by the ministers andnegotiators, but one remains unresolved –Article 14 on “water security.”

For the first time, the wording of the thorny article was revealed.According to the newspaper, Article 14 states:

“Having due regard for the provisions of Articles 4 and5, Nile Basin States recognize the vital importance of watersecurity to each of them. The States also recognize thatcooperative management and development of the watersof the Nile River system will facilitate achievement of

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water security and benefits. Nile Basin States thereforeagree, in a spirit of cooperation, to work together to ensurethat all states achieve and sustain water security and notto significantly affect the water security of any other NileBasin State.”58

Apparently the article includes provisions on both “equitableutilization” and “no significant harm,” as indicated by the ILC 1997Convention.59 However, the newspaper emphasizes that all states agreedon this provision except Egypt and Sudan, which would prefer thefollowing wording “[…] not to adversely affect the water security andcurrent uses and rights of any other Nile Basin States.”60 The definitionof the provision on “water security” remains the major pending issue.In brief, Egypt and Sudan wanted a version of the new agreement thatwould protect and acknowledge the previous agreements (1929 and 1959Agreements). According to this newspaper storyline, the Egyptian andSudanese version was not accepted by all the other Nile riparians, and thedownstream countries expressed reluctance concerning Article 14.Interviews with several national negotiators and regional experts, alreadyat the beginning of 2008, confirmed that the CFA maintained the initialwording, and only Egypt and Sudan included reservations. GordonMumbo, Project Manager of the NBI – CBSI (Confidence Building andStakeholders) program, also “regretted that Egypt and Sudan had refusedto adhere to the new terms stipulating the utilization of the Nile waters.”61

Does this explain the silence of the Egyptian authorities and presssince June? The draft agreement seems to represent a diplomatic defeatfor the Egyptian negotiators. A potential ratification of the draftagreement by the upstream riparians alone might jeopardize thedownstream riparian sacrosanct 1959 Agreement or even cancel thecurrent Egyptian and Sudanese water entitlements. The future scenariosare difficult to predict, nevertheless this new draft agreement representsat least a strong political message from the upstream countries to Egypt.

Egyptian Reactions to the Nile Draft Agreement andCooperation

The Egyptian reactions to the draft agreement are enigmatic, andemphasize how the issue of water security is still framed in terms of

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national security. On August 13, the media office of the Egyptian Ministryof Foreign Affairs,62 reported a meeting in Addis Ababa betweenEgyptian, Sudanese, and Ethiopian officials and parliamentariansconcerning the Nile waters. The report of the MFA focused on thediplomatic development of the cooperation process in the Nile Basin,the potential for projects on the ground and the involvement of severaldonors in the NBI activities. Nevertheless, the report of the MFA isnot so explicit on the legal and institutional concerns in the draftagreement. It mentioned that during the meeting Mekuria Tafesse, theExecutive Director of the NBI stressed “the importance of adoptingit as soon as possible” and that the Ambassador Muhammad ‘Alî, Chiefof the Defense, Foreign, and Security Affairs Committee at the Ethiopianparliament, “requested more information on the controversial issue ofwater security, and called for determining the countries which have votedagainst it, and the current negotiations status in this regard.”63

More intriguing are the declarations of Ambassador Girma Amare,Special Advisor to the Ethiopian Foreign Minister, stating that:

“Water security has been reached to resolve the mostsensitive issues in the draft framework cooperationagreement, which is the relation between the newframework agreement and the existing ones. However, noprecise definition has been agreed upon yet for this term.[…] the Ministers of Water Resources, in their last meetingin Entebbe in June 2007, did not reach an agreement onthis article since seven countries have agreed on the textof the proposed article while two countries have votedagainst it [the countries were not named].”64

The report has not included the Egyptian declarations during themeeting neither did it include the positions of Egypt with regard to thedraft agreement. The report has not denied or confirmed if the twocountries who voted against the agreement are Egypt and Sudan.

The information in the Kenyan and Ugandan newspapers makes itpossible to presume that it was Egypt and Sudan that voted against thedocument. Such an outcome would make it clear that Egypt and Sudanare not yet prepared for a comprehensive framework including all theNile riparian countries. Nor are they willing to renounce the 1959Agreement, considered illegitimate, unfair, and unsustainable by theupstream countries. The maintenance of the status quo is still the main

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option for the two downstream countries, as public declarations of theEgyptian Minister of Water Resources and Irrigation highlight. Accordingto Minister Abû-Zîd “there is no problem to secure Egypt’s currentshare” and “the only remaining point is the most difficult one; it is thepoint related to handling of the old agreements between Egypt andsome of the Nile Basin countries.”65 Abû-Zîd had even been moreincisive stating that “we made it clear for them during the previousphases of negotiations… We insist, and no one can touch the currentshare, the 55.5 billion cubic meters.”66 Moreover, Minister Abû-Zîdreaffirmed Egypt’s capacity to maintain cooperation with its Nileneighbors, confirming that “Egypt is maintaining good relations with allthe Nile Basin countries and we are currently establishing severaldevelopment projects in Ethiopia, Sudan, and Kenya, and the fact thatconfirms the strong Egyptian presence in the African region.”67 Egyptianwater analysts interviewed during 2007, reinforced the idea that theEgyptian stake on the Nile is not in danger. The interviews also confirmedthe disseminated long-lasting thought of Hasanayn Heikal that “thefirst consideration of any Egyptian government is to guarantee thatNile waters are not threatened.”68

Nevertheless, not all Egyptian observers share the same optimismof the Minister of Water Resources concerning the relations with theNile upstream countries. In an article published at the end of June, Al-Ahram Hebdo mentioned that the Nile countries were concluding a newagreement on the management and distribution of the Nile waters andquestioned if “a water war is on the horizon” whereas Egypt will haveto negotiate the water quantities with its neighbors.69 The same newspaperhad previously published an interview with Rushdî Sa‘îd, the mostrenowned Egyptian geologist, who stated that conclusions about currentregional hydropolitical relations are difficult to take because “there in notransparency” concerning the NBI process. Sa‘îd also considered “it ishard to get information about it,” concluding that “this initiative isimpossible to be materialized at the present time.”70

Other experts raised their critical voices against the Egyptianauthorities and the cooperative process in the Nile Basin. For example,Maghâwary Diâb, water expert and former Dean of Menûfiyya Universityconsidered that “President Abdel Nasser successfully managed to buildstrong relations with the Nile countries, which granted Egypt a hegemonicsituation. However, during the regimes of Sadat and Mubarak, things wentstrongly out of control.”71 Similar concerns were expressed by Hasan

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Nâf‘a, professor of political science at Cairo University. According tothis analyst the recent events confirm the impression that “Egypt nolonger carries a portion of its former weight in the Nile Basin.”72

The Al-Akhbâr went further in the analysis, alerting its readershipthat the “new agreement for the water distribution cancels Egypthegemony and control over the water use,” and further highlights thefact that “finalizing the agreement will spontaneously cancel the 1959agreement that gives Egypt a complete control on the water use,”73

according to sources of the Tanzanian Ministry of Water Resources. Inthe same article Magdî Subhî, water expert at the Al-Ahram Center forStrategic Studies laments that “the Egyptian official and political actionsin the Nile Basin regions is very weak.”74 These warnings drew attentionto the legitimacy crisis that Egyptian water authorities might have toface in hydropolitical relations with other Nile riparians, and that thenotion of Egypt’s “historic rights” to the Nile waters might be waning.

Preliminary Conclusions on the New Nile Agreement

On the basis of this analysis, it is possible to assume that Egypt andSudan might not see a Nile Treaty as such an urgent priority as the otherriparians. As ‘Abd al-Fattâh Metawi, chairman of Egypt’s Nile WaterSector at the Ministry of Water Resources and Irrigation, highlighted“these issues [agreements] could take many years (…) but we will reachagreement, even if it takes many years. There is plenty of water. Theproblem is managing it.”75 Egypt and Sudan have a bilateral legalagreement and several hydraulic infrastructures that have protectedhitherto their current uses of the Nile water resources. On the otherhand, the upstream riparians have no agreement and few hydraulicinfrastructures, and are the countries more keen to reach an internationallegal agreement, which would open the doors for external investmentin water projects in their national territories. Moreover, experts fromthe donor community have also expressed their strong will to providefunding for hydraulic projects once the Nile riparians agree on the legalframework, thus creating a safer environment for international investment.

However, for an international treaty to enter into force, theCooperative Framework Agreement must first be accepted and adoptedby the heads of states of the Nile Basin countries and then ratified bythe respective national parliaments. The Nile Basin Initiative will thenbe replaced by the Nile Basin Commission, a river basin organization

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with legal status. At the end of 2007, when this article is being written,it is still uncertain when (and if) there will be a treaty in the near future.It is also unclear if an agreement can be adopted and ratified by justsome of the Nile riparians, and what consequences of such a decisionwould be in diplomatic and cooperative terms.

Conclusion

At the beginning of 2008, Nile negotiations remain in suspense. Itis still unknown if the new Nile agreement will be adopted and ratifiedby the Nile Presidents and Parliaments. Although the negotiations wereconcluded in June 2007, the signature of agreement is still pending. Thelack of decision represents the postponement of the challenges to 2008or beyond. A second phase of negotiations, including water allocations,cannot start without the ratification of the Cooperative Framework.Meanwhile the Nile riparians are under pressure of the internationalinstitutions and the bilateral donors that require a ratified agreementand the creation of a Basin Commission as a sign of trust to continueinvestment in the Basin.

But is Egypt prepared to relinquish the status quo and its “historical”entitlement to the Nile waters, and to allow upstream countries also touse the water resources for their own economic development? Or willEgypt take the risk that the upstream riparians develop the water resourcesunilaterally? Egyptian authorities seem to be in a catch-22 situation. Thenew cooperative framework agreement does not seem to put animmediate threat to the Egyptian status quo as it does not imply redefinitionof volumetric allocations, however a second phase of negotiations isnot desirable because it will confront the provisions of the 1959Agreement. Egypt had been accused of blocking the adoption of theframework in an attempt to gain time. Simultaneously, Egyptianauthorities seem aware that cooperation with the neighbors might bethe best way to contain unplanned and unilateral hydraulic developmentupstream, which would certainly affect the Nile flows. However, at thepresent time, cooperation in the Nile Basin might collapse if theCooperative Framework Agreement is not adopted. Nevertheless, Egyptmaintains its long-standing position – cooperation is acceptable only ifthe “historical rights” of Egypt will be acknowledged or, in the bestscenario, if it will provide additional water resources.

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The events of 2007 provide evidence that the Nile waters questionis still a highly politically sensitive issue in the region and in Egypt inparticular. The treatment of the Nile issues in the media is of extremeimportance for the Ministry of Water Resources and the presidenthimself. This political sensitivity of the Nile negotiations has beenreflected in the Egyptian media during the year. In general, debates inthe public domain about the negotiations were not welcomed and thedraft treaty remained a classified document. The analysis presented herehas only been possible combining different sources of information,both from Egypt and from the other riparian countries.

Finally, management of transboundary water resources involveschallenging technical, economical, social, environmental, and primarilypolitical decisions. The present hydropolitical relations in the Nile RiverBasin demonstrates that countries have to come together if the aim isthe best utilization of shared water resources. Time is an importantfactor to take into account. Agreements can take years to negotiate andmore years to implement. The ideal agreement tends to be postponed.But the economical and social challenges caused by the scarcity of waterresources and the manner of its allocation and distribution are alreadyserious problems that need to be tackled soon. The establishment of acomprehensive legal framework appears to be a crucial element in thepromotion of good hydropolitical relations in the Nile Basin. Anagreement encourages essential institutionalization of the cooperativeprocesses and promotion of international investment in the region. Atthe end of the day, a comprehensive legal framework might be the keyto the success of water resources management at the Basin level, andthe way to avoid the failures of previous attempts at cooperation.

“I saw a river: it was made of water and time. And then I saw another river.”Jorge Luís Borges

Notes

1 With the collaboration and translations of Heba Naiem.2 J.R. Starr, “Water Wars,” Foreign Policy, 82, Spring 1991, pp. 17–36; J. Bulloch

and A. Darwish, Water Wars: Coming Conflicts in the Middle East, London, Victor

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Gollancz, 1993; P.H. Gleick, P. Yolles, and H. Hatami, “Water, war and peacein the Middle East,” Environment, 36(3), April 1994, pp.6–15; T. Homer-Dixon,Environment, Scarcity, and Violence, Princeton, Princeton University Press, 1999.

3 The aim of achieving a Cooperative Framework Agreement had beenincluded in the Nile Basin Initiative Act, February 14, 2002. See[http://www.kituochakatiba.co.ug/nbiact.htm].

4 Eritrea is just an observer in the negotiations for the CooperativeFramework Agreement.

5 “Ministers agree on a Cooperative Framework for the Nile Basin,” NBINews, June 23, 2007,[http://www.nilebasin.org/index.php?option=com_content&task=view&id=50&Itemid=83].

6 See “United Arab Republic and Sudan Agreement for the Full Utilizationof the Nile Waters (1959),”[http://teaching.law.cornell.edu/faculty/drwcasebook/docs/1959%20nile%20treaty.pdf].

7 For details of 1929 and 1959 Nile Agreements see “TransboundaryFreshwater Dispute Database,”[http://ocid.nacse.org/tfdd/treaties.php?GET=tfdd&BCODE=NILE].

8 Tanzania and Kenya have often claimed the Nyerere Doctrine (1961),which challenges the legitimacy of agreements signed during the colonial period.

9 World Bank, Canadian International Development Agency (CIDA) andthe UNDP have been involved in the process since the beginning. Nowadaysseveral international and bilateral agencies are supporting financially the NBIprojects. See “Nile Basin Trust Fund” in the World Bank Web page,[http://go.worldbank.org/V0QNBV7WP0].

10 For details on Shared Vision Programs see [http://www.nilebasin.org/],and for details on Subsidiary Action Programs see Eastern Nile Subsidiary ActionProgram (ENSAP), [http://ensap.nilebasin.org/], and Nile Equatorial LakesSubsidiary Action Program (NELSAP), [http://nelsap.nilebasin.org/].

11 In the past, Ethiopia has refused to be a member of the cooperativeinitiatives, such as Hydromet, Undugu and TeccoNile, because they have notaddressed the legal aspects of cooperation. Ethiopia had participated in thesepast initiatives solely as an observer.

12 See “Convention on the Law of the Non-navigational Uses ofInternational Watercourses 1997,”[http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf].

13 S. McCafrey, The Law of International Watercourses, 2nd edition, New York,Oxford University Press, 2007, p.271; S. McCaffrey, The 1997 UN Watercourses

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Convention: Retrospect and Prospect, presentation to the Symposium on theBrundtland Commission’s Report at 20 and the UN Watercourses Conventionat 10, Institute for Sustainable Development University of the Pacific, McGeorgeSchool of Law, November 17, 2007. See also “McCaffrey Goes To AfricaAgain,” May 19, 2006, in [http://www.mcgeorge.edu/x1015.xml].

14 NBI News, June 23, 2007 (see footnote 3).15 Stockholm International Water Institute (SIWI), “Transboundary Water

Management as a Regional Public Good – Financing development – an examplefrom the Nile Basin,” SIWI Report 20, 2007.

16 D. Phillips, “Sanctioned Discourses as an Element of Hydro-hegemony:The Arguments of Israel and Egypt Concerning ‘Prior Use’,” presentationgiven in Amman, November 13, 2007.

17 Due to the confidentiality of the issue mentioned above, the interviewedpersonalities are not identified.

18 “Fresh Water Talks,” Al-Ahram Weekly, June 11, 2004.19 “Egypt to protect its quota of Nile water,” Daily News Egypt, August 8,

2006.20 “Africa drying up,” The New Vision (Kampala, Uganda), December 13, 2006.21 “Drop in the ocean,” Al-Ahram Weekly, March 29–April 4, 2007, n°838.22 “Eastern Nile Basin Countries Agree On 99% Of Comprehensive Water

Agreement’s Terms,” IPR –Strategic Business Information Database (Cairo), January25, 2007.

23 “Minister of Irrigation: Nile Basin Initiative vital for sustainable economic,social development,” Egypt State Information Service (SIS), February 21, 2007.

24 Ibid.25 The main principles of international water law, as defined by the ILC

1997, are “no significant harm” (Article 7 of the UN 1997 Convention) and“equitable and reasonable utilization” of the water resources.

26 Details about the controversial article would just been made public laterin a Ugandan newspaper.

27 “Un don à partager,” Al-Ahram Hebdo, February 28–March 7, 2007, n°651.28 Kameri-Mbote, Patricia, “2007. Water, Conflict, and Cooperation: Lessons

From the Nile River Basin”, in Woodrow Wilson International Center for Scholars,January 2007, n°4, pp.1–6.

29 The Nile Basin Discourse is a network of civil society organizations fromthe Nile Basin countries that seek to achieve critical impact on the Nile BasinInitiative. See [www.nilebasindiscourse.net].

30 A. Nicol, “Whose Cooperative Framework?,” Nile Basin Discourse Newsletter,June 2, 2007.

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31 “Ethiopia: NBI Permanent Cooperative Framework Progressing,” TheEthiopian Herald (Addis Ababa), February 23, 2007.

32 “World Water Day: Nile Bounty Not Enough to Supply Egypt withWater,” IPS – Inter Press Service (Cairo), March 22, 2007.

33 “Nile Commission to Succeed Nile Basin Initiative,” NBI News, July 12,2007,[http://cbsi.nilebasin.org/index.php?option=com_content&task=view&id=19&Itemid=28].

34 Al-Akhbâr, May 1, 2007.35 “Optimism prevails on the ministerial meeting of the Eastern Nile,” Al-

Akhbâr, May 1, 2007.36 “The Eastern Nile countries achieve progress in examining their joint

projects,” Al-Ahrâm, May 2, 2007.37 “The Eastern Nile countries settle future cooperation issues,” Al-

Jumuhûriyya, May 2, 2007.38 “A unified vision for the Eastern Nile Counties regarding the new

agreement,” Daily Rûz al-Yûsif, May 3, 2007.39 “The Ministry of Irrigation negates the American suggestion of storing

the Nile water in Ethiopia,” Daily Rûz al-Yûsif, May 7, 2007.40 “Ministers of the Eastern Nile give a press conference,” Al-Akhbâr,

May 7, 200741 United Nations, Convention on the Law of the Non-navigational Uses of

International Watercourses, 1997, p5,[http://untreaty.un.org/ilc/texts/instruments/english/conventions/8_3_1997.pdf].

Article 7: Obligation not to cause significant harm (1997 UN Convention):1. Watercourse States shall, in utilizing an international watercourse in their

territories, take all appropriate measures to prevent the causing of significantharm to other watercourse States.

2. Where significant harm nevertheless is caused to another watercourseState, the States whose use causes such harm shall, in the absence of agreementto such use, take all appropriate measures, having due regard for the provisionsof articles 5 and 6, in consultation with the affected State, to eliminate ormitigate such harm and, where appropriate, to discuss the question ofcompensation.

42 Article 5: Equitable and reasonable utilization and participation (1997UN Convention):

1. Watercourse States shall in their respective territories utilize aninternational watercourse in an equitable and reasonable manner. Inparticular, an international watercourse shall be used and developed by

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watercourse States with a view to attaining optimal and sustainableutilization thereof and benefits there from, taking into account theinterests of the watercourse States concerned, consistent with adequateprotection of the watercourse.2. Watercourse States shall participate in the use, development andprotection of an international watercourse in an equitable and reasonablemanner. Such participation includes both the right to utilize thewatercourse and the duty to cooperate in the protection and developmentthereof, as provided in the present Convention.43 L. Seifeselassie, “Cooperating on the Nile not a Zero-Sum Game,” United

Nations Chronicle, September–November 2001,[http://www.un.org/Pubs/chronicle/2001/issue3/0103p65.html].

44 “Egypt accepts new Nile arrangement,” The New Times (Kampala, Uganda),April 3, 2007.

45 Speech by John Mutua Katuku, Minister for Water and Irrigation, duringthe official release of the IEG Report, March 28, 2007, Nairobi.

46 “Nile Basin states agree to ruling body on water use,” Reuters, March28, 2007.

See also “New panel to govern Nile water use,” Al-Jazeera, March 29, 2007,[http://english.aljazeera.net/NR/exeres/4A8FD728-F068-482A-B237-53DBFB55BEE8.htm].

47 “Untapped Water Resources Potential,” Addis Fortune, March 25, 2007.48 “Commission or Initiative: Nile Countries Cannot Decide,” Addis Fortune,

March 25, 2007.49 “An Abbay issue (interview with Ato Tesfaye Wolde Mihiret),” Capital

(Addis Ababa, Ethiopia), June 4, 2007.50 L. Seifeselassie, op.cit.51 “Banks on upstream projects to yield more water,” Daily News Egypt, June 8,

2006.52 Ministry of Water Resources and Irrigation (MWRI – Egypt), National

Water Resources Plan for Egypt – 2017, Cairo, January 2005.53 “As agreed with the Nile River countries, Egypt will have an extra share,”

Al-Jumuhûriyya, August 1, 2007. See also “World Water Day: Nile Bounty NotEnough to Supply Egypt with Water,” IPS – Inter Press Service, March 22, 2007;“The Eastern Nile countries settle future cooperation issues,” Al-Jumuhûriyya,May 2, 2007; “The Nile Basin Initiative is a step for developing the Riverresources,” Al-Akhbâr, November 20, 2007; “95% of Nile water is wasted,”Al-Ahrâr, November 24, 2007.

54 NBI News, June 23, 2007 (see footnote 3).

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55 “Egypt, Sudan against equitable sharing of Nile water,” The Standard(Nairobi, Kenya), June 29, 2007; “Egypt, Sudan against equitable sharing ofNile water,” Sudan Tribune (Khartoum, Sudan), June 30, 2007.

56 Ibid.57 “River Nile Agreements – No Change for Poorer Downstream Countries,”

East African Business Week (Kampala, Uganda), August 20, 2007.58 Ibid. See also “Rift Widens Over Nile Basin Pact as Egypt, Sudan Remain

Reluctant,” The New Times (Kigali, Rwanda), February 29, 2008.59 See footnotes 41 and 42.60 Ibid.61 “Country Blocked From Tapping Nile 9 Waters,” The New Vision (Kampala,

Uganda), July 30, 2007.62 Ministry of Foreign Affairs (Egypt), “First Nile Meeting of the Nile

countries,” August 13, 2007, [http://www.mfa.gov.eg/MFA_Portal/en-GB/Foreign_Policy/International_Relations/Egypt_Africa/13_8_first_meeting_nile_countries.htm].

63 Ibid.64 Ibid.65 “The Minister of irrigation discuss vital issues essential for the every

citizen’s life,” Al-Akhbâr, 30 July 2007. See also “The amount of the floodcannot be calculated before mid August,” Al-Ahrâm, July 1, 2007.

66 Ibid.67 “95% of the water is wasted,” Al-Ahrâm, November 24, 2007. See also

“As long as the High Dam exists, there is no need to fear of floods or drought,”Al-Ahrâm, July 1, 2007.

68 M.H. Heikal, “Egyptian Foreign Policy,” Foreign Affairs, vol. 58, n°4, July1978, pp. 714–727.

69 “La guerre de l’eau à l’horizon 2025?,” Al-Ahram Hebdo, June 27–July 3,2007, n°668.

70 “Ce qui nous reste à faire, c’est d’essayer de diriger Tochka vers un autreobjectif, interview with Rushdî Sa‘îd,” Al-Ahram Hebdo, May 2–8, 2007, n°660.

71 “The International Forum of the Nile Basin countries warns against theIsraeli presence in the African continent,” Al-Misrî al-Yawm, November 7, 2007.

72 “Egypt must turn,” Al-Ahram Weekly, November 1–7, 2007, n°869.73 “A new agreement for the water distribution cancels Egypt hegemony and

control over the water use,” Al-Akhbâr, November 22, 2007.74 Ibid.75 “The Waters of Life,” Time, April 23, 2007.

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Education

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